Workers are getting sick and dying, but OSHA won't crack down on businesses that fail to follow COVID-19 guidelines

As more of the nation’s essential workers become ill with coronavirus, the federal agency responsible for employee safety is telling many of them that it won't crack down on businesses that fail to follow COVID-19 guidelines.

The U.S. Occupational Safety and Health Administration’s position has left some workers, unions and advocates scrambling to figure out how to protect employees.

Workers say employers aren’t cleaning worksites properly, providing protective equipment or telling them when coworkers became sick with the coronavirus, interviews and records obtained by the Milwaukee Journal Sentinel show.

“Workers are left to fend for themselves right now,” said Rebecca Reindel, safety and health director at the AFL-CIO.

The scope of the problem remains unknown. OSHA won’t disclose how many complaints it has received regarding the virus. But in Oregon, where state regulators have taken a more aggressive enforcement stance, a spokesman said they received more complaints in a recent two-week period than they typically get in an entire year.

In Wisconsin, state authorities are telling worried workers to raise their concerns with their employers or to call the police.

Coronavirus Wisconsin: From the CDC, How to protect against novel coronavirus

From the CDC: How to protect against novel coronavirus.

Advocates say that advice is wildly inadequate: Police officers aren’t trained in workplace safety, and many employees won’t risk calling the police for fear of losing their jobs.

Jim Schultz of the nonprofit Wisconsin Committee on Occupational Safety and Health says his group has received between five and 15 inquiries or complaints each week during the last month from workers of grocery stores, gas stations, construction companies and other businesses.

Some workers, he said, report not receiving protective equipment or training on how to use it. Others said they are forced to work closely together.

“That puts not just workers at risk, but it can put the entire community at risk as well,” he said of OSHA’s lack of enforcement.

OSHA officials have been telling worker-rights groups there are no mandatory coronavirus safety rules and that CDC and OSHA guidelines are just recommendations. But advocates say the agency could issue emergency rules or use other tools to enforce safety measures.

OSHA hasn’t responded to written questions from the Milwaukee Journal Sentinel.

On Tuesday, after pressure from worker groups and legislators, OSHA issued new instructions, saying complaints affecting workers with a high risk of exposure to coronavirus patients in certain health care jobs may result in on-site inspections.

But complaints from essential workers in other sectors will typically trigger only a letter asking the employer to investigate and respond with a description of any corrective action taken. If an adequate response is not received, OSHA may conduct an inspection.

Advocates say the new guidance is not enough. All essential employees working now should be considered a high priority, said Marcy Goldstein-Gelb of the National Council for Occupational Safety.

In recent days, several workers of poultry and meat packing plants have died of the virus, and some facilities have closed after workers tested positive. In South Dakota, Smithfield Foods closed a pork processing plant that accounted for about 5% of the U.S. pork production after 238 workers tested positive.

Last week, Vice President Mike Pence said that the government would continue “to work tirelessly” with food industry employers to make sure workplaces are safe.

But when Illinois attorney Tony Kalogerakos asked OSHA to open an investigation into the death of a Walmart employee, the agency said it couldn’t.

A lawsuit filed by Kalogerakos on behalf of Wando Evans’ family says that the 51-year-old store employee died from complications of COVID-19 contracted at a Walmart in Evergreen Park, Ill.

Walmart supervisors, the lawsuit says, failed to follow cleaning, social distancing and other safety guidelines; didn’t tell Evans and others that coworkers had COVID-19 symptoms, and didn’t provide workers with protective gear. An Evans coworker died from the virus a few days after he did, according to the lawsuit.

After receiving the attorney’s online complaint, an OSHA official left Kalogerakos a phone message saying the only thing she could do was tell Walmart she had received a complaint and send the retailer information about Centers for Disease Control and Prevention safety guidelines.

“OSHA does not have any jurisdiction on enforcing anything related to COVID-19 at this time,” the official said in the voicemail, which Kalogerakos provided to the Journal Sentinel.

The OSHA official suggested the attorney contact the Illinois Department of Public Health hotline or the Cook County Department of Public Health.

“It’s ridiculous," the attorney said. “Why even make the recommendations in the first place?”

Walmart spokesman Randy Hargrove said cleaning and sanitizing measures were reinforced, and the store passed a health department inspection. The company, he said, has taken steps across the country to protect workers and customers.

Tim Bell, executive director of Chicago Workers’ Collaborative, asked an OSHA official in late March whether workers' groups should report to the agency factories operating without proper protection, including places where employees had become sick.

An OSHA officer responded in an email, citing CDC guidelines: “We have received a number of complaints every day for the past several weeks about employers failing to follow the guidance. As an organization, all OSHA can do is contact an employer and send an advisory letter outlining the recommended protective measures.”

The official said OSHA would be able to act only against employers that aren’t providing hand soap, paper towels or water for sanitation.

Deborah Berkowitz, a former OSHA senior policy adviser who is now with the National Employment Law Project, has received similar accounts from across the country. So have Goldstein-Gelb, with the National Council for Occupational Safety and Health, and Reindel, with the AFL-CIO.

Their groups and others are asking OSHA to issue an emergency temporary standard that would require businesses to protect workers facing high exposure. Some lawmakers, including Wisconsin U.S. Sen. Tammy Baldwin, have introduced legislation to require the agency to issue an emergency standard.

The American Hospital Association asked its members to lobby against the standard. Robyn Begley, senior vice president of the group, said the CDC is best equipped to provide guidance on health care worker protection.

The CDC guidelines have come under fire from workers groups, which consider them insufficient and influenced by equipment shortages.

But even without an emergency standard, some advocates say, OSHA can enforce coronavirus safety guidelines, at least in some cases, by using a rule that requires employers to provide an environment free from hazards.

With federal OSHA out of the picture for the past few weeks, workers have been sometimes walking out of their jobs or turning to their states for help.

In Wisconsin, Melissa Hughes, secretary of the Wisconsin Economic Development Corporation, said her agency is advising workers to talk with their employers or call police. Local law enforcement, she said, has the authority in Wisconsin to ensure employers follow social distancing and other measures mandated in Gov. Tony Evers’ Safer at Home emergency order.

Kevin Gundlach, president of the AFL-CIO South Central Federation of Labor in Wisconsin, said workers need a complaint process that protects them.

“It’s apparent that telling workers to report to the very company that is flouting the law is not the answer. Neither is going to local law enforcement,” he said in a statement.

In California, a state that operates its own OSHA program, workers' groups aren’t sure whether the agency will enforce coronavirus safety.

Employees of a McDonald’s corporately owned store say they haven’t heard back from state OSHA officials about a complaint they filed about a week ago.

The workers said they frequently lacked gloves, soap and hand sanitizer and that their employer only recently implemented a social-distancing line for customers.

“I’m afraid of getting sick with the coronavirus,” said Ana Martinez before she returned to work on Friday after a few days on strike. “They don’t protect the employee.”

On Friday, though, she said the store had enough gloves and soap, and a transparent screen protected cashiers. But employees can’t work six feet apart in the kitchen, and the store needs cleaning, she said.

Frank Polizzi, California's OSHA program spokesman, said that they can’t comment on the complaint but that employers must take steps to prevent the virus' spread.

McDonald’s spokeswoman Anne Christensen said in a statement that gloves, soap and hand sanitizer haven’t been scarce and that the company started wellness checks, increased cleanings and applied additional social-distancing guidelines.

In Illinois, workers’ advocates have turned to the state’s Attorney General for help.

Employees at an Eagle Foods plant in Waukegan that produces popcorn and snacks were told April 6 that a coworker tested positive for COVID-19, said one of the employees, who asked not to be identified. Employees were expected to keep working, he said.

The employee said he decided to stay home the following day. He said he was terrified of getting infected and passing the virus to his children.

Chicago Workers' Collaborative filed a complaint with the state Attorney General last week, said Bell, the group’s executive director. Attorney General spokeswoman Tori Joseph said the office, in cooperation with the Lake County Health Department, issued guidance to protect the Eagle Food workers, and the company agreed to comply.

Eagle Foods spokeswoman Mala Wiedemann said in a statement that when the company learned last week that a worker had tested positive, the firm notified employees and the Lake County Health Department. After a second worker tested positive, the company closed the plant through Sunday to deep-clean and disinfect it.

The plant reopened Monday. The employee who requested anonymity said he returned that day and noticed improved precautions: Everyone received masks, there was sanitizer at the clock-in station, and there were fewer workers.

He said he felt less exposed: “Completely safe, no,” he said. “Safer, yes.”

Contact Maria Perez at (646) 675-1050 or maria.perez@jrn.com. Follow her on Twitter @mariajpsl or on Facebook at facebook.com/mariajpsl